In the recent case of Smith v Kit Kat Group (Pty) Ltd [2016] ZALCJHB 362, the Labour Court dealt with the appropriate relief in circumstances where an employee had been unfairly discriminated against on the basis of a disability.

The employee in this case had suffered facial disfigurement as a consequence of a failed suicide attempt. The disfigurement also caused a speech impediment. Approximately five months elapsed from the date of his attempted suicide and the date on which he tendered his services to his employer. Throughout that period, the employer was supportive of the employee and stated on various occasions that whenever he was ready to return to work, he would always be welcomed back into the workplace.

However, when the employee officially tendered his services to the employer, he was told that he was not “facially acceptable” and that his presence in the workplace would remind the other employees of the unfortunate event. He was also informed that his speech impediment made it difficult for others to understand him. Ultimately, the employer did not accept the tender of the employee’s services.

Notwithstanding this, the employer took no further steps to dismiss the employee. The employee was thus left in limbo with no source of income and no certainty of his position and future.

The employee then referred a discrimination dispute to the CCMA in terms of section 10 of the Employment Equity Act, 55 of 1998, as amended (“the EEA”) which was unsuccessfully conciliated and then referred to the Labour Court.

With reference to the Code of Good Practice on the Employment of People with Disabilities as well as the employee’s ability to work and to find work, the Labour Court examined the employee’s circumstances and concluded that the employee suffered from a disability which was caused by his attempted suicide.

Having established that the employee had a disability, the Court then considered whether the employee had been discriminated against on ground of disability. It was found that the employer’s conduct was tantamount to a repudiation of the employee’s contract of employment. It did not want the employee back at work, but equally did not want to deal with the issue of the employee’s continued employment. The Court accordingly found that there could be no doubt that the manner in which the employer dealt with the employee’s disability amounted to discrimination.

The Labour Court then proceeded to the next enquiry, namely whether the discrimination was unfair. The employer’s reliance on the concept of the employee being ‘cosmetically unacceptable’ was found to be patently unfair and did not offer a justification to the discrimination against the employee. The Court noted that the employer’s duty to accommodate the employee in the organisation stems from its overriding obligation not to discriminate against him. The Court found that the employer failed to discharge this obligation. The manner in which the employer dealt with the employee following his tender of services amounted unequivocally to unfair discrimination.

Having determined that the employee had been unfairly discriminated against on the basis of his disability, the Labour Court considered the appropriate relief that the employee was entitled to. In terms of section 50(2) of the EEA, the Labour Court is entitled to make, inter alia, an order for the payment of damages and/or the payment of compensation to the employee.

The Court considered the distinction between an award for compensation and an award for damages with reference to the case of the SA Airways (Pty) Ltd v Jansen van Vuuren and Another (2014) 35 ILJ 2774 (LAC), in which it was stated that ‘damages’ refers to an actual or potential monetary loss (i.e. patrimonial loss), while ‘compensation’ refers to the award of an amount in solatium (i.e. non-patrimonial loss).

Section 50 of the EEA provides that any order in respect of an employee who has been unfairly discriminated against must be ‘appropriate’ and ‘just and equitable’ in the circumstances. In SA Airways the Labour Appeal Court had held that an award for damages in respect of patrimonial loss and a compensation award for the injured feelings of an employee who has been unfairly discriminated against may, depending on the facts and circumstances of the case, be justified.

The Labour Court accordingly found that the employee had a claim for damages, being the patrimonial loss arising from the salary that he did not earn as a result of the unfair discrimination. The employee’s compensation claim would be solatium for the humiliation and hurt suffered as a result of the unfair discrimination. Furthermore, the Court noted that the conduct of the employer was mala fide and that it acted to undermine the fundamental values underpinning labour relations in South Africa.

Based on these findings, the Court found that a damages award for 24 months’ salary and a compensation award for 6 months’ salary would be appropriate in the circumstances. The result of this award was that the employee was entitled to R1 540 199.40 in damages and compensation.

The case serves as startling reminder of how employees with disabilities or impediments are still treated in the workplace. Employers must take note of this judgment and particularly the harsh sanction imposed by the Court. The Courts would take a dim view of employers who engage in any form of unfair discrimination, including a failure to assist employees with disabilities or impediments.

Written by Neil Coetzer, Partner and Nils Braatvedt, Candidate Attorney, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys